On December 7, 2018, a federal court in Maryland issued an important ruling in a Real Estate Settlement Procedures Act (“RESPA”) case[1] (“Baehr”), granting a defense motion for summary judgment. The court dismissed the action entirely for lack of Article III standing and because the plaintiffs could not equitably toll RESPA’s statute of limitations. Foley partners and long-time blog contributors Jay Varon and Jennifer Keas served as lead counsel for the defense. This is…

As the saying goes: “Everything in moderation— especially communications from defendant employers to putative members of a class action suit.”
While this might not be exactly how the saying goes, a trial court in Massachusetts recently found that such a principle does limit how and when defendants can contact members of a putative class action. In Frost v. Malden/Dockside, Inc.,[1] the plaintiff sought to limit the defendant employer from communicating with putative class members…

Gavel and book on a table
As the U.S. Supreme Court observed memorably in First Options of Chicago, Inc. v. Kaplan,[1] arbitration disputes often raise “three types of disagreement” relevant to resolution of the dispute: (1) a disagreement as to the merits of the dispute; (2) a disagreement as to whether the dispute is subject to arbitration; and (3) a dispute as to who gets to decide, in the first instance, whether the dispute is subject to arbitration. The Court…

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The Ninth Circuit is at it again, blazing a different path than its sister circuits. In Sali v. Corona Regional Medical Center, 889 F.3d 623 (9th Cir. 2018), the Court reversed a district court’s order that denied class certification on the grounds that the sole evidence offered in support was a self-serving declaration that included unauthenticated documents and improper opinion testimony and was therefore inadmissible. In ruling that evidence offered in support of class certification…

Young woman using cell phone to send text message on social network at night. Closeup of hands with computer laptop in background
California companies housing their drivers’ personal information may feel less exposed to liability in light of the Northern District of California’s holding in Antman v. Uber Technologies, Inc. in May.[1] The trial court in Antman found that Uber was not liable to its drivers after hackers illicitly accessed their personal information through Uber’s computer system.[2]
Plaintiffs Sasha Antman and Gustave Link alleged that the company failed to protect their personal information, as well…

Attorneys general (AGs) are not only lawyers for their states; they are enforcers, regulators, and even public policy advocates. With a broad consumer protection mandate, a state AG is able to reach a wide range of industries that have a consumer touch. When joining in multi-state actions, and even more so those with public policy implications, AGs have a significant voice nationally to affect interests of business. We attended a series of multi-state AG meetings…

Senators, governors and state attorneys general are racing their campaigns toward election. While appealing to voters, attorney general candidates will inevitably target industries with positions and promises of using their state enforcement powers. How AGs will fare is partly a question of public policy, as seen, for example, with issues of data privacy, opioids and consumer finance. And businesses should consider the proactive engagement of state AGs on both legal and political levels.…

This week, in the closely watched case of China Agritech v. Resh,[1] the U.S. Supreme Court issued an important class action ruling, holding that the tolling principles announced in its earlier American Pipe decision[2] do not allow absent class members to file follow-on class action lawsuits where the statute of limitations has otherwise expired on their claims.
As we have previously noted, the question of whether American Pipe tolling applies to…

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Recent decisions by and within the Ninth Circuit Court of Appeals elucidate the contours of Article III standing when plaintiffs seek injunctive relief in false advertising cases despite already having awareness of the claimed false advertising of the product. Although these decisions present a threat of coaching plaintiffs to navigate through potential standing pitfalls in federal courts within the Ninth Circuit, they also offer insights for companies defending against false advertisement or labeling class action…